Charles Ehigie Airhiavbere V. Comrade Adams Aliyu Oshiomhole & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Governorship Election Petition Tribunal sitting at Benin delivered on the 27th of September, 2012. The facts which led to this appeal are as follows:

The Appellant was a candidate in the Governorship Election in Edo State held on 14/7/2012. The Appellant is the Petitioner in the lower tribunal.

The 1st Respondent was the candidate of the 2nd Respondent in the said election and were the 1st and 2nd Respondents at the lower tribunal.

At the end of the election the 1st Respondent was returned as the winner by the 3rd -5th Respondents. Being dissatisfied with the election and return of the 1st Respondent, the Appellant filed an Election Petition claiming the following reliefs:

“(a) That it be determined that the 1st Petitioner is entitled to be returned by the 3rd and 5th Respondents as having been duly elected as the Governor of Edo State by reason of having scored the highest number of lawful votes cast at the Governorship Election held on the 14th of July, 2012.

(b) In the alternative, that it be determined that the Election of the 1st Respondent was invalid by reason that he was not qualified to run for the office of Governor off Edo State having not met the mandatory statutory requisite qualifications to contest in the Election and other non-compliance with the provisions of the Electoral Act 2010 (as amended).

In their various replies to the petition the Respondent incorporated preliminary objections to same in line with Para 12(5) of the 1st Schedule to Electoral Act 2010 (as amended). The Appellant filed Replies to the various Replies by the Respondent.

At the close of pleadings, 1st Respondent filed a motion on notice on 3/9/2012 claiming the following reliefs:

1. Leave to bring and argue this application before/outside the prehearing session
2. An order striking out and/or dismissing the petition for being incompetent.
3. An order striking out paragraphs 8, 12(iv), 13(i), (ii) & (iii), 14(a-q), 15(a-k), 18, 19,20, 21, 22, 23, 24, 25, 27, 28, 29 and 30(1) and (2) of the Petition, a fortiori striking out the entire petition

On their part, 3rd – 5th Respondents also filed a motion on notice on 11/9/2012 claiming the following reliefs:

1. An order of this Honourable Tribunal granting leave to the Applicant to argue their applications before or outside pre-hearing session.
2. An order striking out or dismissing the petition for being inventive, mala fide, frivolous and a gross abuse of the process of the Honourable Tribunal.

IN THE ALTERNATIVE

3. An order of this Tribunal striking out the names of the 4th -5th Respondents from the petition same not being proper parties to it.
4. An order striking out paragraphs 8, 12, 13, 24, 25 and 30 of the petition.

Issues were joined by the parties in respect of the various applications and they were heard by the Learned Tribunal. On 27/9/2012, the lower tribunal delivered its ruling wherein it granted the application in part and struck out Paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(t) and (2) of the petition. The ruling is at page 866 to 888 of the records.

This appeal is against the part which held that the tribunal can entertain the motion at the interlocutory stage, that part that held that the issue of non qualification is a pre-election matter and that which struck out Paragraphs 12(iv), 13(i) and (ii), 23, 24, 25 and 30(1) and (2) of the petition.

In the brief prepared by Chief E. L. Akpofure SAN, Senior Counsel submitted the following issues for determination: